Finch, J.
This action was brought to recover commissions alleged to have been earned by the plaintiff in procuring a purchaser of certain real estate owned by the defendant in New Jersey. The court below directed a verdict in favor of the plaintiff at the close of the entire case.
The material facts are substantially as follows: the property owned by the defendant had been on the market for some time, and so anxious was the defendant to effect a sale that he would not lease. One Perkins, a large dealer in plumbers’ supplies, was in search of [3]*3a place to lease, as the premises which had been occupied by him had been sold and he was compelled to move within a short time. He had instructed the plaintiff to try and obtain a lease of the premises owned by the defendant. The plaintiff approached the defendant in an endeavor to obtain a lease, but the defendant refused to make a lease. The plaintiff insisted that a lease with a cancellation clause meant a sale to Perkins since the latter had a large stock of heavy hardware, and that by leasing to Perkins for a year and providing for a cancellation clause within a period of thirty days, the defendant could give notice of cancellation and Perkins would be unable to find a place within such a short period, and even if he found a suitable place the moving would cost from $15,000 to $20,000, and hence he would be compelled to purchase the premises at the price the defendant was asking, which was under $30,000.
Upon the plaintiff showing to the defendant that a lease under such circumstances meant a sale, the defendant said “All right, if you say it is a sale, I will go away from my stipulated rule and I will give a lease.”
The plaintiff telephoned Perkins in the presence of the defendant and from the defendant’s desk, and the parties compromised in this conversation on a cancellation clause of ninety days. During this same conversation at the office of the defendant, the defendant and the plaintiff had a conversation in reference to what the plaintiff’s commissions would be on the sale, and the defendant agreed with the plaintiff that in the event of a sale he would give him five per cent commission.
The lease was subsequently executed and plaintiff received a commission therefor, and on the same day [4]*4the defendant signed an instrument in writing, reading as follows:
“ This agreement made this 26th day of March, 1917, by and between the United States Express Company, party of the first part, and Arthur L. Perkins, of Jersey City, N. J., party of the second part.
“ Witnesseth, that for and in consideration of the sum of One Dollar ($1.00) and other good and lawful consideration, receipt of which is hereby acknowledged, the party of the first part hereby agrees that the party of the second part, or his assign, shall have the privilege or option to purchase the property known as 170 and 172 Eighth Street, City of Jersey City, N. J., for the sum of Twenty-nine Thousand ($29,000.00) Dollars cash, or such other terms as may be agreeable to the party of the first part, which said option shall be good up to and including the 30th day of June, 1917, and in the event that the property is purchased by the party of the second part, or his assign, at the price named, the party of the first part will convey property by Bargain and Sale deed and will pay to J. I. Kisiak of Hoboken, N. J. Five Per Cent (5%) of said sum as and for a commission for securing such sale.
“ United States Express Company " by D. I. Roberts,
" Witness “ President.
“ F. E. Curry.”
Perkins never saw this writing until the day of the trial, and had no knowledge of its existence until then. Perkins moved into the premises, and the plaintiff asked Perkins several times to buy, but Perkins always told him that he was unable to buy as he had no money to put into the property. When the time came that the option was about to expire by its terms, the plain[5]*5tiff went to the defendant and sought to obtain an extension of time. He said to the defendant, “ Mr. Perldns does not seem anxious to do business with me ” and asked the defendant “ Will you allow Mr. Curry (who was defendant’s attorney and cognizant with all the transaction) to help make the deal. Let him work with Perldns;” to which the defendant replied, “ Now your time is running out; I won’t have anything more to do with it.” Plaintiff said, “Well, it is my buyer, he will surely buy. What are you trying to do? Force me out.” Defendant replied, “ I have nothing to say;” I said, “ Will you extend the time.” He said “No, I have got nothing to say; I am through.”
This conversation primarily would seem to have reference to an extension of the option which plaintiff was seeking so as to keep other brokers out. At the most a question of fact is raised for the jury as to whether it can reasonably be inferred that this conversation not only had reference to an extension of the option but also revoked and cancelled the agreement which the .plaintiff had previously made with the defendant, namely, that he was to be entitled to a brokerage of five per cent if he put through a sale. The existence of this agreement of the plaintiff with the defendant is virtually admitted by the defendant, and this suit is being contested by and on behalf of the purchaser, Perkins, who agreed at the time of the purchase to hold the defendant harmless from any liability for commissions. Neither the defendant nor his attorney Curry was called as a witness by the defendant, but they were on the contrary examined before trial on behalf of the plaintiff and their depositions were read on behalf of the plaintiff. In such deposition the defendant testified; “A. I have no recollection of dis[6]*6cussing commissions. Doubtless we spoke of it, but I cannot recall what was said because! knew that unless otherwise agreed to a commission would have to be paid by somebody in the regular way.” Curry also testified as follows: “ You heard Mr. Perkins say the difficulties he would have had if he had to move out in July? A. Yes, sir. Q. You heard him testify to that? A. Yes. Q. In this deal Kislak and MacDonald were to receive their commission if the deal was made from the United States Express Company? A. I know nothing about Mr. MacDonald. Q. Kislak? A. Yes.”
Before the option ran out, the plaintiff brought other prospective buyers to the premises, and the plaintiff testified in substance that he brought them there for the purpose of making Perkins think that the property would be bought over his head and that he would have to move. Plaintiff also wrote a letter to defendant on June twenty-ninth, saying that Perkins promised to call at defendant’s office some time next week with a view to purchasing the. property, and that plaintiff believed that defendant could do better with Perkins at this time. On the eleventh of July, the defendant wrote to Perkins acknowledging a letter to him of July tenth (presumably asking for such appointment) and said he would be glad to see Perkins at the defendant’s office any afternoon. Pursuant to this meeting, Perkins and the defendant met and closed the contract for the sale of the property. It thus appears that the defendant in effecting a sale of this property had followed exactly the plan proposed by the plaintiff to compel the purchase.
Free access — add to your briefcase to read the full text and ask questions with AI
Finch, J.
This action was brought to recover commissions alleged to have been earned by the plaintiff in procuring a purchaser of certain real estate owned by the defendant in New Jersey. The court below directed a verdict in favor of the plaintiff at the close of the entire case.
The material facts are substantially as follows: the property owned by the defendant had been on the market for some time, and so anxious was the defendant to effect a sale that he would not lease. One Perkins, a large dealer in plumbers’ supplies, was in search of [3]*3a place to lease, as the premises which had been occupied by him had been sold and he was compelled to move within a short time. He had instructed the plaintiff to try and obtain a lease of the premises owned by the defendant. The plaintiff approached the defendant in an endeavor to obtain a lease, but the defendant refused to make a lease. The plaintiff insisted that a lease with a cancellation clause meant a sale to Perkins since the latter had a large stock of heavy hardware, and that by leasing to Perkins for a year and providing for a cancellation clause within a period of thirty days, the defendant could give notice of cancellation and Perkins would be unable to find a place within such a short period, and even if he found a suitable place the moving would cost from $15,000 to $20,000, and hence he would be compelled to purchase the premises at the price the defendant was asking, which was under $30,000.
Upon the plaintiff showing to the defendant that a lease under such circumstances meant a sale, the defendant said “All right, if you say it is a sale, I will go away from my stipulated rule and I will give a lease.”
The plaintiff telephoned Perkins in the presence of the defendant and from the defendant’s desk, and the parties compromised in this conversation on a cancellation clause of ninety days. During this same conversation at the office of the defendant, the defendant and the plaintiff had a conversation in reference to what the plaintiff’s commissions would be on the sale, and the defendant agreed with the plaintiff that in the event of a sale he would give him five per cent commission.
The lease was subsequently executed and plaintiff received a commission therefor, and on the same day [4]*4the defendant signed an instrument in writing, reading as follows:
“ This agreement made this 26th day of March, 1917, by and between the United States Express Company, party of the first part, and Arthur L. Perkins, of Jersey City, N. J., party of the second part.
“ Witnesseth, that for and in consideration of the sum of One Dollar ($1.00) and other good and lawful consideration, receipt of which is hereby acknowledged, the party of the first part hereby agrees that the party of the second part, or his assign, shall have the privilege or option to purchase the property known as 170 and 172 Eighth Street, City of Jersey City, N. J., for the sum of Twenty-nine Thousand ($29,000.00) Dollars cash, or such other terms as may be agreeable to the party of the first part, which said option shall be good up to and including the 30th day of June, 1917, and in the event that the property is purchased by the party of the second part, or his assign, at the price named, the party of the first part will convey property by Bargain and Sale deed and will pay to J. I. Kisiak of Hoboken, N. J. Five Per Cent (5%) of said sum as and for a commission for securing such sale.
“ United States Express Company " by D. I. Roberts,
" Witness “ President.
“ F. E. Curry.”
Perkins never saw this writing until the day of the trial, and had no knowledge of its existence until then. Perkins moved into the premises, and the plaintiff asked Perkins several times to buy, but Perkins always told him that he was unable to buy as he had no money to put into the property. When the time came that the option was about to expire by its terms, the plain[5]*5tiff went to the defendant and sought to obtain an extension of time. He said to the defendant, “ Mr. Perldns does not seem anxious to do business with me ” and asked the defendant “ Will you allow Mr. Curry (who was defendant’s attorney and cognizant with all the transaction) to help make the deal. Let him work with Perldns;” to which the defendant replied, “ Now your time is running out; I won’t have anything more to do with it.” Plaintiff said, “Well, it is my buyer, he will surely buy. What are you trying to do? Force me out.” Defendant replied, “ I have nothing to say;” I said, “ Will you extend the time.” He said “No, I have got nothing to say; I am through.”
This conversation primarily would seem to have reference to an extension of the option which plaintiff was seeking so as to keep other brokers out. At the most a question of fact is raised for the jury as to whether it can reasonably be inferred that this conversation not only had reference to an extension of the option but also revoked and cancelled the agreement which the .plaintiff had previously made with the defendant, namely, that he was to be entitled to a brokerage of five per cent if he put through a sale. The existence of this agreement of the plaintiff with the defendant is virtually admitted by the defendant, and this suit is being contested by and on behalf of the purchaser, Perkins, who agreed at the time of the purchase to hold the defendant harmless from any liability for commissions. Neither the defendant nor his attorney Curry was called as a witness by the defendant, but they were on the contrary examined before trial on behalf of the plaintiff and their depositions were read on behalf of the plaintiff. In such deposition the defendant testified; “A. I have no recollection of dis[6]*6cussing commissions. Doubtless we spoke of it, but I cannot recall what was said because! knew that unless otherwise agreed to a commission would have to be paid by somebody in the regular way.” Curry also testified as follows: “ You heard Mr. Perkins say the difficulties he would have had if he had to move out in July? A. Yes, sir. Q. You heard him testify to that? A. Yes. Q. In this deal Kislak and MacDonald were to receive their commission if the deal was made from the United States Express Company? A. I know nothing about Mr. MacDonald. Q. Kislak? A. Yes.”
Before the option ran out, the plaintiff brought other prospective buyers to the premises, and the plaintiff testified in substance that he brought them there for the purpose of making Perkins think that the property would be bought over his head and that he would have to move. Plaintiff also wrote a letter to defendant on June twenty-ninth, saying that Perkins promised to call at defendant’s office some time next week with a view to purchasing the. property, and that plaintiff believed that defendant could do better with Perkins at this time. On the eleventh of July, the defendant wrote to Perkins acknowledging a letter to him of July tenth (presumably asking for such appointment) and said he would be glad to see Perkins at the defendant’s office any afternoon. Pursuant to this meeting, Perkins and the defendant met and closed the contract for the sale of the property. It thus appears that the defendant in effecting a sale of this property had followed exactly the plan proposed by the plaintiff to compel the purchase. Defendant had notified Perkins that his lease would be cancelled under the ninety day provision, and Perldns was practically compelled to purchase the property, or as he himself testified, “ because of the situation into which [7]*7the brokers had gotten him.” No commission has been paid to any person.
Plaintiff in his complaint relies upon two causes of action; one based upon an agreement by defendant to pay plaintiff five per cent commission on the purchase price in consideration of plaintiff securing a purchaser, and the other based upon a quantum meruit. Considering the first cause of action, it is to be noted that plaintiff apparently pleads and relies upon an oral agreement of which a memorandum was made to pay plaintiff a commission of five per cent if he brought about a sale, which oral agreement antedated the agreement contained in the exclusive option which had expired. It is clear that plaintiff must succeed, if at all, upon this oral agreement, for the reason that the written agreement contained in the option expired with the latter. Defendant contends that all of the oral conversations between the plaintiff and the defendant out of which grew the agreement by the defendant to employ the plaintiff as a broker and to pay him a five per cent commission, which agreement was prior to the signing of the option, were merged in the option agreement as a matter of law, and that no evidence regarding such oral conversations is competent, since such evidence is contrary to the written agreement. In this defendant is in error. Without considering the fact that the plaintiff is not a party signatory to this agreement, it is plain that these conversations do not contradict the written agreement, nor are they -in any way inconsistent with it. The written agreement does not purport to be exclusive and to prevent the plaintiff from bringing about the sale in the same manner as any other broker might. In addition, therefore, to the question of fact already noted, there are two additional questions of fact, [8]*8namely, whether there was any agreement as to commission except as contained in the option, and, second, whether the plaintiff was the procuring cause in effectuating a sale. On both of these questions there are at least conflicting inferences to be drawn from the evidence, if not indeed contradictory evidence, and thus are. raised issues for the jury to pass upon. The defendant asked leave to go to the jury upon both of these latter questions, and the denial of his motion and the direction of a verdict for the plaintiff by the court presents error for which there must be a new trial.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.